Opinion
No. 2134 C.D. 2008.
Submitted: June 12, 2009.
Filed: July 20, 2009.
BEFORE: SMITH-RIBNER, Judge; LEAVITT, Judge; McCLOSKEY, Senior Judge.
OPNION NOT REPORTED
Janis Kelley appeals an order of the Court of Common Pleas of Washington County that denied her statutory appeal from a one-year suspension of her operating privilege imposed under Section 1547(b) of the Vehicle Code, 75 Pa. C.S. § 1547(b) (Implied Consent Law). In this case we consider whether the arresting officer had reasonable grounds to believe that Kelley had exercised actual physical control over her vehicle while under the influence of alcohol. Finding no error by the trial court in denying Kelley's appeal, we will affirm its order.
It states that "[i]f any person placed under arrest for [driving under the influence of alcohol or controlled substance] is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person . . . for a period of 12 months." 75 Pa. C.S. § 1547(b)(1)(i).
On July 8, 2008, Kelley was notified by the Department of Transportation, Bureau of Driver Licensing (Department), that her driver's license was being suspended for a period of one year as a result of her refusal to submit to chemical testing on June 22, 2008. Kelley filed a statutory appeal and the trial court conducted a de novo hearing on September 19, 2008.
At the hearing, Corporal Charles Mutich of the Washington City Police Department appeared on behalf of the Department. Corporal Mutich testified that on June 22, 2008, at approximately 11:30 a.m., he was dispatched to the Chicken Charlie's restaurant in Washington, an establishment that serves alcoholic beverages. When Corporal Mutich arrived at the scene, he observed Kelley sitting in the driver's seat of her vehicle with the engine running and the transmission in park. Corporal Mutich recalled that Kelley immediately became argumentative when he approached her vehicle and demanded to know why he was bothering her. Corporal Mutich explained to Kelley that he had been informed that she was in the parking lot for an extended period of time and that she had allegedly backed her car into another vehicle. Corporal Mutich observed fresh damage to the rear fender on the passenger side of the vehicle.
As Corporal Mutich was speaking with Kelley he detected a strong odor of alcohol emanating from her person. Corporal Mutich asked Kelley to turn off the engine and step out of her vehicle. Kelley complied with the officer's request, albeit slowly, and continued being verbally argumentative. Corporal Mutich administered three field sobriety tests, and Kelley failed all three. Corporal Mutich then informed Kelley that she was under arrest for suspicion of DUI and transported her to the police station for chemical testing.
At the station, Corporal Mutich read verbatim the warnings contained on the Department's Form DL-26. Kelley did not ask any questions about the warnings but repeatedly stated that "she's not signing anything." Reproduced Record at 27, 28 (R.R. ___). Corporal Mutich placed the Form DL-26 in front of Kelley but could not recall if she actually read it. After Kelley refused to sign the form, Corporal Mutich asked her to submit to chemical testing and explained that her refusal would result in an automatic suspension of her license for one year. She refused. Thereafter, Kelley was released to her son.
Kelley testified that she had been drinking alcohol until around 1:00 a.m. on the morning in question, had stayed up all night and then drove to the restaurant parking lot to meet someone. Kelley believed she had been sitting in the parking lot for 20 to 25 minutes before Corporal Mutich arrived on the scene. R.R. 58. Kelley claimed that Corporal Mutich never read the Form DL-26 warnings to her or provided her with a copy. Kelley testified that she would not have refused to sign the form or submit to chemical testing because of the ramifications of a license suspension on her professional and personal life.
Following the hearing, the trial court denied Kelley's appeal. The present appeal followed.
On appeal, Kelley argues that Corporal Mutich did not have reasonable grounds to believe that she had operated or exercised actual physical control of her vehicle while under the influence of alcohol. Kelley also contends that the Form DL-26 warnings provided to her were ambiguous and, therefore, legally insufficient to satisfy Section 1547(b)(2)(i) of the Implied Consent Law, 75 Pa. C.S. § 1547(b)(2)(i).
Our standard of review in a license suspension case is to determine whether the factual findings of the trial court are supported by competent evidence and whether the trial court committed an error of law or an abuse of discretion. Banner v. Department of Transportation, Bureau of Driver Licensing, 558 Pa. 439, 443-444, 737 A.2d 1203, 1205 (1999). Questions of credibility are for the trial court to resolve. Id. at 444, 737 A.2d at 1205.
Section 1547(b)(2)(i) states that it shall be the duty of a police officer to inform any person placed under arrest for DUI that "the person's operating privilege will be suspended upon refusal to submit to chemical testing." 75 Pa. C.S. § 1547(b)(2)(i).
To sustain a suspension of operating privileges under Section 1547 of the Implied Consent Law, the Department must establish that the licensee:
(1) was arrested for driving under the influence by a police officer who had reasonable grounds to believe that the licensee was operating or was in actual physical control of the movement of the vehicle while under influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was warned that refusal might result in a license suspension.
Banner v. Department of Transportation, Bureau of Driver Licensing, 558 Pa. 439, 445, 737 A.2d 1203, 1206 (1999) (emphasis added).
Reasonable grounds exist when a person in the position of the police officer, viewing the facts and circumstances as they appeared at the time, could have concluded that the motorist was operating the vehicle while under the influence of intoxicating liquor. . . . In determining whether an officer had reasonable grounds to believe that a motorist was in "actual physical control" of a vehicle, the court must consider the totality of the circumstances, including the location of the vehicle, whether the engine was running and whether there was other evidence indicating that the motorist had driven the vehicle at some point prior to the arrival of the police. . . . Whether reasonable grounds exist is a question of law reviewable by the court on a case by case basis. . . .
Id. at 446-447, 737 A.2d at 1207 (citations and footnote omitted).
Viewing the totality of the circumstances, we hold that Corporal Mutich had reasonable grounds to believe that Kelley was in actual physical control of her vehicle while she was intoxicated. When Corporal Mutich arrived at the scene, Kelley was sitting in the driver's seat of her vehicle in front of a restaurant that serves alcoholic beverages. Her keys were in the ignition and the engine was running. Corporal Mutich observed what he described as fresh damage to the rear fender of Kelley's vehicle. Although the record does not establish that Kelley was actually involved in an accident with another vehicle, Mutich was aware of allegations to that effect when he was dispatched to the scene, thus lending support to his belief that she had operated her vehicle at some point prior to his arrival. Finally, Mutich had reasonable grounds to believe that Kelley was intoxicated since she smelled of alcohol and failed three field sobriety tests.
Kelley's arguments in opposition to the Department's case are unavailing. She cites our Supreme Court's statement in Banner that "[a] line must be drawn to distinguish circumstances where a motorist is driving his vehicle while under the influence of alcohol, which the statute is intended to prevent, and circumstances where a motorist is physically present in a motor vehicle after becoming intoxicated." Banner, 558 Pa. at 449, 737 A.2d at 1208. Relying upon two decisions of the Superior Court, Kelley contends that the Department must go beyond showing that a licensee was behind the wheel with the engine running to demonstrate "actual physical control." Commonwealth v. Price, 610 A.2d 488 (Pa.Super. 1992); Commonwealth v. Saunders, 691 A.2d 946 (Pa.Super. 1997). Assuming Kelley's narrow interpretation of our sister court's precedent is correct, the Department did offer more than evidence of her presence behind the wheel with the engine running. Corporal Mutich found Kelley parked in front of a restaurant that serves alcohol, and observed fresh damage to her vehicle consistent with information he had received about her backing into another vehicle. In short, based upon all of the evidence available to Mutich at the scene, we hold that he had reasonable grounds to believe Kelley had exercised actual physical control of her vehicle while she was intoxicated.
Price and Saunders do not really advance Kelley's position. In Price, the Superior Court acknowledged that " at a very minimum, a parked car should be started and running before a finding of actual physical control can be made." Price, 610 A.2d at 490 (emphasis original). Those two factors were present in the instant case, whereas in Price one was absent; the defendant was found sitting in the driver's seat of a parked car with the engine not running. In Saunders, the Superior Court noted that "something more than a defendant behind the wheel, with the motor running, is required to establish actual physical control of the vehicle; there must be evidence to support an inference indicating that the vehicle had been driven by the defendant while he was intoxicated." Saunders, 691 A.2d at 949. As explained more fully above, the Department did offer "something more" in this case.
Our determination is in accord with factually similar cases where this Court found the requisite actual physical control. See, e.g., Riley v. Department of Transportation, Bureau of Driver Licensing, 946 A.2d 1115 (Pa.Cmwlth. 2008) (licensee found asleep behind the wheel of parked car with engine running, headlights on and music blaring); Vinansky v. Department of Transportation, Bureau of Driver Licensing, 665 A.2d 860 (Pa.Cmwlth. 1995) (licensee found with head slumped over steering wheel in vehicle parked behind social club with engine running and brake lights on); Department of Transportation, Bureau of Traffic Safety v. Farner, 494 A.2d 513 (Pa.Cmwlth. 1985) (licensee found behind the wheel of his truck, parked in a traffic lane, with his hands on the steering wheel, engine running, brake lights activated and transmission in park).
In her second issue, Kelley challenges the legal sufficiency of the August 2006 version of the Department's Form DL-26, which was read verbatim to her by Corporal Mutich following her arrest. Kelley contends that paragraph 3 of Form DL-26 was ambiguous because it did not make clear that a person's license " will be suspended upon refusal to submit to chemical testing." Section 1547(b)(2)(i) of the Implied Consent Law, 75 Pa. C.S. § 1547(b)(2)(i) (emphasis added). Kelley concedes that an en banc panel of this Court recently held that the language in paragraph 3 was not ambiguous. Yourick v. Department of Transportation, Bureau of Driver Licensing, 965 A.2d 341 (Pa.Cmwlth. 2009). As a three-judge panel we are bound by Yourick and must decline Kelley's invitation to reevaluate that decision.
Paragraph 3 of the August 2006 version of Form DL-26 stated, in pertinent part, as follows: It is my duty as a police officer to inform you that if you refuse to submit to the chemical test, your operating privileges will be suspended for at least 12 months, and up to 18 months, if you have prior refusals or have been previously sentenced for driving under the influence. Yourick v. Department of Transportation, Bureau of Driver Licensing, 965 A.2d 341, 343 n. 2 (Pa.Cmwlth. 2009).
For all of the foregoing reasons, we affirm the order of the trial court.
ORDER
AND NOW, this 20th day of July, 2009, the order of the Court of Common Pleas of Washington County in the above-captioned matter, dated October 7, 2008, is AFFIRMED.